PHMSA and CSB Urge Special Precautions in the Wake of Hurricane Harvey

In the aftermath of Hurricane Harvey, the devastating storm that recently swept through central Texas, both the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the U.S. Chemical Safety and Hazard Investigation Board (CSB) are urging special precautions to minimize the impact of the storm on pipeline and other energy infrastructure in the state.

The CSB issued a Safety Alert on August 27, 2017, urging oil and chemical facility operators to take special precautions when restarting refineries, pipelines, and other facilities in the wake of shutdowns due to the storm. Explaining that “the startup of major processes is a hazardous phase in the operation of oil refineries and chemical plants,” the Alert outlines specific procedures to assure safe restarts and urges operators to implement safety protocols and to ensure adequate staffing and expertise prior to re-start, “recognizing that human performance may be compromised due to crisis conditions.”

PHMSA has advised operators to continue to aggressively implement their hurricane preparedness plans, explaining that contractors are poised to begin post-storm inspections of pipeline infrastructure, including aerial inspections by helicopter, as soon as possible. PHMSA also encourages the use of “Texas Call 811” prior to conducting excavation projects, to minimize the risk of third-party strikes on pipeline infrastructure during repair efforts.

PHMSA also provides information on emergency hazardous materials special permits under 49 C.F.R. §§ 107.105 and 107.117. These provisions apply to the issuance of special permits that allow deviation from PHMSA’s hazardous materials (“hazmat”) regulations applicable to the shipment and transportation of hazardous materials, as well as the processing of applications for such permits on an expedited basis where necessary to prevent significant injury to persons or property or for immediate national security purposes.

While not referenced on PHMSA’s Hurricane Harvey information page, the pipeline safety regulations contain a similar provision, allowing the processing of pipeline special permit applications on an emergency basis where the PHMSA Associate Administrator determines that doing so “is in the public interest, is not inconsistent with pipeline safety, and is necessary to address an actual or impending emergency involving pipeline transportation.” 49 C.F.R. § 190.341(g). These emergency special permits are issued as orders whereby PHMSA waives an operator’s compliance with the requirements of one or more federal pipeline safety regulations for a specified period of time. Id. at § 190.341(a). To qualify for emergency treatment, the event precipitating the special permit application must be “local, regional, or national in scope and includes significant fuel supply disruptions and natural or manmade disasters such as hurricanes, floods, earthquakes, terrorist acts, biological outbreaks, releases of dangerous radiological, chemical, or biological materials, war-related activities, or other similar events.” Id. Emergency special permits may last no more than 60 days and may be renewed upon application to PHMSA only after notice and the opportunity for a hearing on the renewal. Id. More information on how to apply for an emergency special permit is contained in 49 C.F.R. § 190.341.

As it has done on several prior occasions in the aftermath of major hurricanes, PHMSA is likely to issue an advisory to pipeline operators in the coming weeks, reminding them of the regulatory requirements applicable in the aftermath of a natural disaster such as a hurricane. PHMSA has previously explained that hurricanes can adversely affect pipeline operations and can increase the risk of pipelines becoming exposed or constituting a hazard to navigation in the case of underwater pipelines in the Gulf of Mexico. According to PHMSA, such circumstances trigger an operator’s obligation to take appropriate corrective measures. 80 Fed. Reg. 36042, 36043 (June 23, 2015) (citing 49 C.F.R. Parts 192.613 (surveillance of gas pipelines); 195.401(b) (repairs on hazardous liquid pipelines); 192.613, 195.413 (underwater inspections of shallow-water gas and hazardous liquid pipelines)).